Spinner vs Hesslein Facts: Spinner is a corporation involved in textiles, including khaki.

They are based in England and India and are represented in the Philippines by Wise and Co. They sell different brands and grades of khaki. One of the grades they are known for is called Wigan. Hesslein is a local corporation also in the business of textiles. In the process of selling their khaki fabrics, they also make use of the term Wigan. Spinner, however, holds the trademark for the brand both in Englang and here in the Philippines, Wigan and is not asking the court to restrain Hesslein from using such term. Spinner also wants to claim damages on the basis of unfair competition. Issue: WON Spinner is entitled to damages based on unfair competition. Held: DAMAGES CANNOT BE CLAIMED BY SPINNER. THERE WAS NO FRAUD INVOLVED. On the one hand, the law concerning infringement of trade-marks and that concerning unfair competition have a common conception at their root, which is that one person shall not be permitted to misrepresent that his goods or his business are the goods or the business of another, the law concerning unfair competition is broader and more inclusive. On the other hand, the law concerning the infringement of trade-mark is of more limited range, but within its narrower range recognizes a more exclusive right derived from the adoption and registration of the trade-mark by the person whose goods or business are first associated therewith. Unfair competition cannot be placed on the plane of invasion of property right. The tort is strictly one of fraud. With respect to the question of infringement of trade-mark right, it is clear that the appropriation by the defendant of the word "Wigan" for use in the sale of its khaki did not constitute a violation of trade-mark prior to April, 1925, when the word "Wigan" was first incorporated in the plaintiff's registered trade-mark; but after that date it was certainly illegal for the defendant to use the word "Wigan" stamped upon the khaki sold by it; and this act was an infringement of trade-mark right. A plaintiff who elects to sue for the damages resulting to his business from infringement of a trade-mark or from unfair competition of another and who fails to prove any assessable damage is not entitled to an accounting for the profits obtained by the defendant upon goods sold by him in violation of the plaintiffs right. The right to recover damages and the right to accounting are different remedies; and the election to sue for the first is a waiver of the second.